Negligence

Can A New York Property Owner Be Liable For A Plaintiff’s Unforeseen Conduct?

In Morales v. Mid Bronx Senior Citizens Council, Inc., a New York trial court recently addressed whether commercial property owners were liable for an accident caused by a plaintiff’s unforeseen conduct. Plaintiff in that case alleged that after the conclusion of his employment training at a senior citizen’s home, he attempted to leave the property, but the gate was locked. He then attempted to reenter the building, but that door was locked as well. When plaintiff could not get anyone to answer the door, he tried to leave the property by climbing a 15-foot wall and was injured when he jumped down. The defendants moved for summary judgment in the resulting personal injury lawsuit, arguing that no dangerous condition existed, plaintiff’s actions were the proximate cause of his injures, and that they could not have foreseen such conduct. The court agreed and found that “a reasonable person in plaintiff’s situation would not have climbed over an extremely high wall, instead they would have called for help or waited for assistance.” The court held that plaintiff’s reckless conduct caused his injury and not the locked gate, which is “not a dangerous condition in and of itself.” The court added that the decision to climb over the wall and jump down “could not have been a natural and foreseeable consequence” of leaving the gate locked. Accordingly, the court found that the locked gate was not the proximate cause of the plaintiff’s injuries and summary judgment was appropriate under the circumstances. The Morales decision serves as a reminder that property owners in New York are not subject to liability for injuries or conduct that they could not reasonably foresee. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questionsRead More

Proof of Planted Tree Alone Does Not Create a Dangerous Condition (NJ)

It is long established precedent in New Jersey that residential landowners do not owe a duty to maintain their sidewalks for the safety of pedestrians, but commercial landowners and commercial tenants usually are bestowed a duty to maintain sidewalks for the benefit of the public.  Still, a residential landowner can be liable for a sidewalk defect if the residential owner creates or exacerbates a dangerous sidewalk condition.

In Mondie v. Linton, the plaintiff, while walking her dog, tripped and fell on a raised sidewalk slab in front of defendants’ home in Barnegat, New Jersey.  She sued the residential owners and claimed that the owners created the differential sidewalk condition and therefore could potentially be liable.  The evidence revealed that the defendants had owned the house, constructed in 1989, and  Plaintiff further identified a pear tree located a few feet from the sidewalk adjacent to the differential sidewalk slabs,  The plaintiff, through an expert, claimed that the tree had been planted either by the defendant owners or the developer who constructed the home and who was the defendants’ predecessor in title.  Defendants acknowledged the tree’s presence but denied they ever planted it.

On appeal of the trial court’s dismissal of plaintiffs’ complaint on summary judgment, the appellate division held the plaintiff could not show that the defendants or the previous developer planted the tree despite some case law indicating that a residential property owner may be liable for injuries sustained by a pedestrian if it can be shown that the owner planted a tree where he or she “could readily foresee … the roots of the tree extending underneath the sidewalk causing it to be elevated.”  Nonetheless, and despite relying on an expert report, the appellate division found that the plaintiff could not prevail because she should not show that the defendants or their predecessors in title affirmatively planted the tree which might have raised the sidewalk.  Notably, the court took issue with plaintiff’s expert who did not consider the distance from the tree to the sidewalk, whether and how the roots spread in the area under the sidewalk slab, or any explanation for how the tree raised the sidewalk.  Thus, summary judgment for the defendants was affirmed.

In these types of cases, it is important for the defense to highlight the deficiencies of plaintiffs’ proofs in order to obtain summary judgment.

Thanks to Mike Noblett for his contribution.  If you have any questions, please contact Matthew Care.

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What Happens When Trial Court Permits Plaintiff’s Doctor to Testify that the Defense’s Independent Medical Doctor is paid by an insurance company? A mistrial, according to New York’s First Department

Evidence that a defendant carries liability insurance is generally inadmissible at trial, so when a trial witness spills the beans as to the existence of insurance, a mistrial may be warranted. While a mere reference to insurance will not always result in reversal, New York’s First Department recently held that notifying a jury that an insurance company is generally responsible for hiring doctors to perform independent medical examinations (“IME”) is enough to remand a case for a new trial.

In Campbell v. St. Barnabas Hospital, 195 A.D.3d 405 (1^st Dep’t 2021), plaintiff was injured tripping over a step stool that was placed in the walkway of defendant’s physical therapy clinic. During trial, plaintiff’s doctor was called to the stand and asked if he was aware that plaintiff was examined by another doctor under the guise of an IME. In response, plaintiff’s doctor answered in the affirmative, opined as to the lack of a doctor/patient relationship between plaintiff and the IME doctor, and further stated that IME doctors are “generally hired by an insurance company.” Defendant’s counsel objected to the response concerning insurance and requested a curative jury instruction. However, the Supreme Court did not give a curative instruction, but rather allowed plaintiff’s doctor to further testify that IME doctors are “generally hired by an outside agency” and that IME doctors are “hired solely for an opinion based on [a] bunch [of] records and an examination . . . that is how they’re hired.” Subsequently, defendant’s counsel requested a mistrial, but the Supreme Court denied the motion.

On appeal, the First Department reversed the Supreme Court’s ruling and held that the testimony by plaintiff’s doctor warrants remanding the case for a new trial. The First Department explained that evidence of defendant carrying liability insurance is generally inadmissible, as it is both collateral and prejudicial. Thus, if testimony goes beyond the mere mention of insurance, a mistrial may be warranted. As such, the First Department held that the testimony of plaintiff’s doctor constituted reversible error and that a new trial was warranted. Accordingly, the First Department reversed the Supreme Court’s Ruling.

Thanks to Drew Fryhoff for his contribution to this article.  Should you have any questions, please contact Thomas Bracken.

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Tick Tock On The Clock – No Constructive Notice In NJ

The Appellate Division recently ruled that where liquid was on the lobby floor for one minute and twenty-three seconds and no employee was in close enough proximity to the site of the spill, no jury could possibly find constructive notice and therefore summary judgment is appropriate. McKiski v. Harrah’s Atlantic City Operating Company, LLC 2021 WL 4428924 at *3 (2021).

In McKiski, plaintiff’s slip and fall and the moments that preceded it were all captured on video footage in the lobby of Harrah’s in Atlantic City. The footage showed a group of patrons carrying pillows, sleeping bags, and other items when one member of the group dropped a bag containing a bottle of liquor. This broke the bottle and caused the spill leading to plaintiff’s fall. The group tried to clean up the spill, but after one minute and three seconds, the group left. Twenty seconds later, plaintiff walked by the area and fell to the floor. Footage did not show any Harrah’s employees until they arrived to help plaintiff after her fall.

Plaintiff alleged that there were two security guards assigned locations ten to twelve feet from the spill, and a bell captain’s station was twenty feet from the spill. Plaintiff claimed that from this evidence, employees should have heard the liquor bottle break. Plaintiff admitted at oral argument that Harrah’s did not have actual notice.

The Appellate Division rejected plaintiff’s arguments on constructive notice. The Appellate Division stated, “plaintiff’s suggestion that Harrah’s employees should have heard or noticed the spill in time to prevent [plaintiff’s] fall is based solely on speculation relating to the position of those employees at the time of the spill and the audio conditions in the busy lobby.” The court also ruled plaintiff’s expert report, which opined that the employees should have heard the breaking liquor bottle, was inadmissible because it was not predicated on accepted industry standard or practices regarding the maintenance of hotel properties. Therefore, the Appellate Division held there was no genuine issue of material fact as to constructive notice and summary judgment was appropriate.  We anticipate this case being relied upon by defendants going forward in actions when a hazardous condition only existed for a brief period of time.

Thanks to Brendan Gilmartin for his contribution to this post. Please contact Heather Aquino with any questions.Read More

Property Owner Is At The Root Of The Problem, Not the City of New York

We present a case this week highlighting the liability of sidewalk maintenance between the City of New York and an abutting property owner. In Konstantinos Gallis v. 23-21 33 Rd., LLC, 2021 NY Slip Op 05549 (2d Dept. 2021), the plaintiff claimed personal injury after he tripped and fell on a raised part of sidewalk. The location of the fall was next to a tree owned by the City of New York. Plaintiff alleged the tree roots had raised the sidewalk allegedly causing the hazard. The premises owner 23-21 33 Road LLC defaulted on the Complaint, and plaintiff sought summary judgment on liability against the City of New York alleging the City allowed for the tree roots to grow and cause the hazard ultimately leading to plaintiff’s injury. The trial court denied the plaintiff’s motion and the Second Department affirmed that decision.

The Second Department re-affirmed Administrative Code §7-210 and its precedent which shifts liability for defective sidewalk conditions from the City to the abutting property owner. Importantly, Administrative Code §7-210 covers any defects involving the negligent failure to repair or replace defective sidewalk flags, and failure to remove snow, dirt, or other materials from the sidewalk. The court determined the defective sidewalk conditions caused by growing tree roots is covered under Administrative Code §7-210 and noted an abutting property owner may cut or remove tree roots to repair sidewalks after obtaining permission from the City. Also important in the Second Department’s decision is that the exemption of Administrative Code §7-210 under subsection (b) allows for the City to be held liable if the property is “in whole or in part, owner occupied” and used for “exclusive residential purposes.” The reasoning behind this exemption is that the City should only be allowed to shift the burden of sidewalk defects to commercial properties and not “small residential properties” who would not have the resources for constant monitoring and repair of the sidewalk.

This case highlights the specific variables wherein the City of New York can and cannot be held liable for any sidewalk defect or defect caused by inclement weather abutting a property owner’s building under almost any circumstances. The liability for a defect on the sidewalk is almost always shifted to the abutting property owner, and the caveat exception would apply to residential properties which are at least in part owner occupied. Thus, any commercial property owner should constantly monitor their sidewalks, and in the event of a defect caused by a tree, they should immediately contact the City of New York for permission to rectify the defect.

Thanks to Raymond Gonzalez for his contribution to this article.  Should you have any questions, please contact Thomas Bracken.

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The First Department Wants You To Think Twice Before Hitting Send (NY)

Reaching a settlement via email is easier than you think, so be careful. In a recent decision by New York’s First Department, an email reflecting an agreement between attorneys is sufficiently subscribed for purposes of CPLR §2104 even where the attorney does not retype their name above the signature block.

In Philadelphia Insurance Indemnity Company v. Kendall, 197 A.D.3d 75 (1^st Dep’t 2021), an insurer petitioned to enforce a settlement agreement and vacate an arbitration award related to an underinsured motorist claim brought by an employee of the insured. The employee settled a claim with an underinsured third-party and later made a claim under a Supplementary Underinsured Motorist Benefit Provision in their employer’s automobile policy with the insurer. The employee and the insurer proceeded to arbitration where the employee was awarded $975,000. However, despite the arbitration decision being sent the parties’ counsel, neither counsel received the decision and they continued to negotiate a settlement. Consequently, the parties agreed to settle the dispute for $400,000.

After reaching a settlement, the employee’s counsel memorialized the agreement in an email; at the bottom of the email appeared “Sincerely,” followed by counsel’s name and contact information within the signature block. In response, insurer’s counsel replied with an email containing a Release and Trust Agreement to be signed by the employee. Subsequently, the employee’s counsel received the arbitrator’s decision and indicated that they would not proceed with the $400,000 settlement. Instead, they demanded payment of the $975,000 awarded by the arbitrator. Insurer petitioned to enforce the settlement agreement and to vacate the arbitration award. However, the Supreme Court denied the insurer’s petition finding that the employee’s attorney failed to subscribe his email because he did not retype his name to supplement the signature block. The insurer appealed to the Appellate Division.

On appeal, the First Department reversed the Supreme Court’s ruling and held that the settlement agreement was enforceable. Pursuant to CPLR §2104, a stipulation between parties or their attorneys is not binding upon a party unless it is in a writing subscribed by him or his attorney. The First Department explained that the Court of Appeals has not opined on whether emails can satisfy CPLR §2104, and that the issue on appeal was a matter of first impression. The First Department held that the distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is practiced today. Essentially, it is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent. Accordingly, the First Department reversed the Supreme Court’s ruling.

Thanks to Drew Fryhoff for his contribution to this post.  Should you have any questions, please feel free to contact Thomas Bracken.Read More

Grapes of Wrath: Sam’s Club and the Mode of Operation Rule (NJ)

In a typical slip and fall case, a plaintiff needs to prove that a defendant knew or should have known about a dangerous condition on the premises that caused the plaintiff to fall. However, in certain ‘self-service’ settings, New Jersey has applied the ‘mode of operation’ rule to certain commercial businesses. The mode of operation rule applies when a business permits its customers to handle products and equipment unsupervised by employees. This is a very plaintiff friendly rule.

In Jeter v. Sam’s Club, a New Jersey Appellate Court further limited the application of the mode of operation rule. No. A-0716-19, 2021 WL 1961122, at *2 (N.J. Super. Ct. App. Div. May 17, 2021), In Jeter, plaintiff slipped on a grape in Sam’s Club. Plaintiff failed to prove constructive or actual notice. Therefore, she tried to apply the mode of operation rule, arguing that because customers take their own grapes and can open the grape containers in the store, food shopping in Sam’s Club should be considered a self-service operation.

The Court rejected this argument. While stating Sam’s Club is a self-service operation, Sam’s Club’s grapes were kept in clamshell containers. Opening the grape containers before purchasing was characterized as tampering with the product, and the nature of selling grapes in closed containers did not result in a pattern of conduct or incidents that would support application of the doctrine. The Court expressly stated the mode of operation doctrine applies when “a business permits its customers to handle products and equipment, unsupervised by employers.” Because Sam’s Club did not invite customers to open grape containers in the store prior to purchase, the mode of operation doctrine did not apply.

Thanks to Brendan Gilmartin for his contribution to this post. Please contact Heather Aquino with any questions.Read More

Contractors Beware: PA Court Held Open And Obvious Defense Inapplicable To Contractor

A recent decision from the Pennsylvania Superior Court highlights the problem with rushing to judgment in the evaluation of premises liability claims. See Miller v. WRDH Holdings, LLC, No. 3543 EDA 2019 (Pa. Super. Ct. Sept. 7, 2021). Miller involved injuries allegedly sustained when the plaintiff fell while attempting to walk around a temporary sidewalk closure sign. The City of Philadelphia required the sign when it issued the permit to the contractor performing construction work in the area. WRDH Holdings, Inc. (“WRDH”), the contractor performing the work and the entity responsible for placement and maintenance of the temporary sign, was the only remaining defendant at the time of trial. Although Plaintiff admitted that she observed the sign as she approached the sidewalk, she denied seeing the base of the sign and claimed that she was unable to get around the base due to pedestrian traffic. The testimony of other witnesses established four feet of space for pedestrian traffic around the sign.

After Plaintiff called her liability expert, and before Plaintiff closed her case, WRDH moved for an entry of nonsuit asserting Plaintiff could not prevail because WRDH owed no duty to warn of open and obvious conditions. WRDH’s argument was premised on application of the Restatement (Second) of Torts § 342 and 384. Since these two sections for the basis of the appeal, we discuss each section here.

Pursuant to Section 342, a possessor of land is subject to liability for physical harm to licensees by a condition on the land only if all of the following conditions are met:

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger; and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved; and (c) the licensees do not know or have reason to know of the condition and the risk involved.

Restatement (Second) of Torts §342.

Section 384 extends the protections of Section 342 to individuals/entities who, on behalf of the possessor, erect a structure or create a condition on the land. In such circumstances, the individual/entity performing such work is subject to the same liability as the possessor. See Restatement (Second) of Torts §384.

WRDH asserted that it was entitled to the same protections as the possessor and, as such, owed no duty to plaintiff because the condition was open and obvious. Plaintiff argued that Section 384 was inapplicable because WRDH was not the owner or possessor of the premises and was not working on behalf of the owner/possessor of the premises. Instead, Plaintiff asserted Section 386 controlled. The trial court granted the nonsuit and thereafter denied Plaintiff’s motion to remove the nonsuit. The Plaintiff appealed.

Four issues were raised on appeal. First, whether the trial court erred in granting the nonsuit. Second, whether the trial court abused its discretion or otherwise erred in denying the motion to vacate the nonsuit. Third, whether the trial court erred in labeling the Plaintiff as a licensee and refusing to apply §386 of the Restatement. Finally, whether the trial court erred in finding that Plaintiff recognized the hazard, i.e. that the hazardous condition was open and obvious. The Superior Court affirmed all four questions and reversed and remanded.

In evaluating the issues, the Superior Court first considered the trial court’s written opinion. The trial court believed, “although not clearly established,” that the defendant was the occupier of the land and the plaintiff a licensee. Pursuant to Section 342c, the plaintiff must show that she did not know and had no reason to know of the condition or the risk of harm from the temporary sign. The trial court’s decision relied on long standing precedent in Pennsylvania regarding application of the open and obvious doctrine. See e.g. Carrender v. Fitterer, 469 A.2d 120, 123 (PA. 1983). However, as the Superior Court noted, Carrender is presupposes that WRDH is the owner or possessor of the land. The evidence established at trial demonstrated that WRDH was neither the owner nor possessor. Therefore, the Superior Court opined, the trial court committed reversible error not only in deciding questions of fact which should have been left for the jury, but also in reaching the conclusion as to the defendant’s status.

The Superior Court further held that the trial court erred in considering Restatement (Second) of Torts § 384 because there was no evidence that WRDH was acting on behalf of the owner or possessor in placing the sidewalk closure sign.

The Superior Court agreed with the Plaintiff/Appellant, finding that the trial court erred in failing to apply Restatement (Second) of Torts §386. Section 386 provides as follows:

Any person, except the possessor of land or a member of his household or one acting on his behalf, who creates or maintains upon the land a structure or other artificial condition which he should recognize as involving an unreasonable risk of physical harm to others upon or outside of the land, is subject to liability for physical harm thereby caused to them, irrespective of whether they are lawfully upon the land, by the consent of the possessor or otherwise, or are trespassers as between themselves and the possessor.

Restatement (Second) of Torts §386. Section 386 does not contain language regarding open and obvious conditions and, as such, WRDH was not entitled to assert same as a defense.

The decision should serve as a warning to practitioners and insurance carriers handling premises liability claims in Pennsylvania. A rush to judgment regarding the status of any party or the nature of the alleged hazardous condition could come back to bite you. A methodical approach ensures proper adjustment and defense of these claims.

Please contact Jennifer Seme with any questions.Read More

Game, Set, Match: Plaintiff Tripping On Tennis Court Has No Claim Under Primary Assumption of Risk Doctrine (NY)

In Schwartz v. Ramapo, 2021 NY Slip Op 04773 (2d Dept. 2021), a plaintiff was playing tennis when she suffered injuries after tripping on a raised sprinkler head in between two tennis courts owned and operated by the Town of Ramapo.  The Rockland County Supreme Court Judge dismissed the Ramapo defendants’ under the doctrine of primary assumption of risk. “Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation.  Assumption of risk is not an absolute defense but a measure of the defendant’s duty of care (Asprou v Hellenic Orthodox Community of Astoria, 185 A.D.3d [2d Dept. 2020]); ‘the defendant’s duty is to exercise care to make the conditions as safe as they appear to be.  If the risks of the activity are fully comprehended or perfectly obvious, [the participant] has consented to them and defendant has performed its duty’ (Asprou, supra). “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation” (Asprou, supra). “Among the risks inherent in participating in a sport are the risks involved in the construction of the field, and any open and obvious conditions of the place where the sport is played” (see Philius v City of New York, 161 A.D.3d 787 [2d Dept. 2018] ), including less than optimal conditions (Asprou, supra).

The Second Dept. held the defendants’ satisfied their prima facie burden for summary judgment by showing the raised sprinkler head was open and obvious and plaintiff testified she knew sprinkler heads were present in between tennis courts. Plaintiff’s argument that she was not specifically aware of the sprinkler system causing her fall was unavailing. The court determined for the application of assumption of risk, the plaintiff need only know the potential exists for the mechanism of her fall i.e. she knew there were certain sprinkler heads present on the tennis court and she knew the tennis courts were cleaned with water from the sprinklers. Plaintiff also failed to offer any conclusive expert evidence that the sprinkler heads should have been flush with the court so as to avoid causing a tripping hazard.

The Schwartz case sets an excellent example of the doctrine of primary assumption of risk. It highlights that if a certain condition exists in a recreational area, although it may be hazardous, it may also fall under the assumption doctrine so long as the condition is open and obvious and the public participants would have been made aware of the condition as a part of the recreational activity.  Prudent property owners will warn public pedestrians about the potentially hazardous conditions on their recreational areas to avoid liability for subsequent injuries.

Thanks to Raymond Gonzalez for his assistance with this post.  Should you have any questions, please feel free to contact Tom Bracken.

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PA Superior Court Finds That Employer Is Liable For Contribution Despite Not Being At Fault For Plaintiffs’ Injuries

In McLaughlin v. Nahata, et al., the Pennsylvania Superior Court found a hospital could seek indemnity or contribution toward a $17 million verdict rendered against it, from the employer of the doctors found liable for malpractice.

Plaintiffs Alyssa McLaughlin and William McLaughlin sued two doctors over injuries Alyssa received while treating at The Washington Hospital (“TWH”). Plaintiffs also named TWH as a defendant. TWH joined The Dialysis Clinic, the doctors’ employer. Although the doctors performed the treatment that allegedly caused the injuries at TWH, the trial court found that The Dialysis Clinic was the doctors’ employer. Eventually, the doctors settled with the plaintiffs and TWH’s claims for contribution from The Dialysis Clinic were severed into a separate trial.

The Dialysis Clinic claimed that it could not be held liable because it did not contribute to the injuries. The Superior Court disagreed. The court reasoned that the Pennsylvania Joint TortFeasors Act “does not limit the right of contribution to tortfeasors who have been guilty of negligence.  Contribution is available whenever two [or] more persons are jointly or severally liable in tort, irrespective of the theory by which tort liability is imposed.” Although the theory of liability against The Dialysis Clinic was only through vicarious liability, the court reasoned that contribution was still available. Ultimately, the Superior Court remanded the case to the trial court because it found that the amount of liability to be apportioned to The Dialysis Clinic was a jury issue.

Thanks to John Lang for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken.

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